his recollection at an examination before trial, the books of a corporation of which he was treasurer. He refused to obey the order on the ground that so doing would incriminate him. Held, that the defendant is guilty of contempt of court. Pray v. Blanchard Co., 95 N. Y. App. Div. 423.

The decision was based upon the grounds that the defendant could assert his alleged privilege only by appealing from the order, and that the mere production of the books for the purpose of refreshing his recollection could not of itself tend to incriminate him. The second ground seems to have been well taken. The rule that a witness need not furnish evidence against himself is of long standing. East India Co. v. Campbell, 1 Ves. 246. And the production of documents to be used in evidence is within the privilege. Boyd v. United States, 116 U. S. 616. In the principal case, however, the books were, by the terms of the order, to be used merely for the purpose of refreshing the recollection of the witness. It seems clear that a court has power to make such an order. Chapin v. Lapham, 20 Pick. (Mass.) 467. If, upon the examination, questions should be put to the defendant the answers to which would tend to incriminate him, he could then assert his privilege. The mere production of documents does not make them evidence. Merrill v. Merrill, 67 Me. 70.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

POWER OF STATE COURT OVER RECEIVER APPOINTED BY FEDERAL COURT. The old English rule that a receiver could not be sued without the leave of the court appointing him caused much injustice, when courts, usually federal, began to use such officials in this country to take charge of large corporations. Small claimants were practically without legal redress against corporations so managed. To remedy this, Congress, in March, 1887, enacted that receivers appointed by any United States court may be sued in respect of anything done in carrying on the business, without the previous leave of the appointing court; provided, however, that such suit shall be subject to the general equity jurisdiction of the appointing court, "so far as the same may be necessary to the ends of justice." Some points as yet unsettled under this law are treated in an interesting recent article in the Central Law Journal. Has a State Court Jurisdiction to Issue an Injunction Against a Receiver Appointed by a Federal Court? by W. A. Coutts, 59 Cent. L. J. 382 (Nov. 11, 1904). The writer first discusses whether a state court in which suit has been brought has jurisdiction to levy execution for the enforcement of its judgments. Conceding the federal court's authority to intervene if justice demands, it is nevertheless contended that the conferring of jurisdiction to sue gave the state court jurisdiction to enforce judgment by its own independent process. It is argued that there are only dicta against this, and In re Tyler (149 U. S. 164), which has been regarded as deciding the point, is distinguished as within the clause authorizing interference so far as "necessary," even if proceedings under a tax warrant come within the meaning of “suit" in the act of Congress, which is doubted.

Mr. Coutts's view on this matter seems hardly likely to prevail, however. Where there is no statute dispensing with the need of leave to sue in another court and such permission is granted, process may not issue from that other court, for it is for the appointing court to settle the time and manner of satisfying the judgment. Harding v. Nettleton, 86 Mo. 658. Confusion would seem to be avoided and the end of the act giving leave to sue attained by the observance of the same rule.

If power to issue process is denied to the state court Mr. Coutts still maintains that it may have authority to issue injunctions against receivers. Levy and sale under process, he admits, affect property, and creditors may have a right to a pro rata distribution of the proceeds, requiring control by the appointing

court. No such reason, he says, demands control of an injunction, which operates in personam. In proper cases it would not infringe any rights represented by the receiver, and a state court is as competent to pass on the propriety of it as a federal court. Mr. Coutts admits, however, that the three state court decisions in favor of his view do not give the subject the consideration it deserves. A Michigan case is opposed, and it may well be doubted if the Supreme Court of the United States will decide that the act was intended to give such power.

FOREIGN JUDGMENTS AS EVIDENCE OF THE RIGHTS FOUNDED UPON THEM. A recent article in the Columbia Law Review contains a concise and scholarly summary of a large subject. History of the Adoption of Section I. of Article IV. of the United States Constitution and a Consideration of the Effect on Judgments of that Section and of Federal Legislation, by George P. Costigan, Jr., 4 Columbia L. Rev. 470 (Nov. 1904). That well-known section, enlarging upon a provision in the Articles of Confederation, provides that "full faith and credit" shall be given in each state to the public acts, records, and judicial proceedings of every other state, and that Congress shall prescribe the method of proof and the effect thereof. Congress at once exceeded the authority here given by exercising, in connection with it, the right given by the Constitution to legislate in aid of the general judicial power. For the acts of 1790 and of 1804, since incorporated in the Revised Statutes (sec. 905), gave to judgments by courts of the territories and possessions, as well as of the states, "full faith and credit" in every court "within the United States." Mr. Costigan notes that judicial legislation completed the circle by securing a like recognition throughout the land for judgments of the federal courts.

While most foreign judgments seem to have been merely prima facie evidence of matters properly adjudicated, the Constitution made sister-state judg ments conclusive evidence, open only to the defense of lack of jurisdiction and to such other defenses as could be brought against them where they were rendered. The writer believes that the constitutional provision is self-executing without the statutes, and that, upon a demurrer to a complaint which alleges a sister-state judgment but does not authenticate it as required by statute, the question may yet come before the Supreme Court. Other points discussed are the application of those enactments to judgments of justices of the peace and to state judgments sued upon in courts of the Philippine Islands, for example, which are perhaps not literally "within the United States."

In contrasting the treatment of foreign and of sister-state judgments Mr. Costigan seems to take a position regarding comity that may be open to misunderstanding. Citing Hilton v. Guyot (159 U. S. 113), he says that “what comity sustains, unfriendliness can take away," and that "comity does not require us to do more by others than they do by us." It seems the better opinion that the admission to-day of many foreign judgments as conclusive evidence is based not upon curtesy but upon law justified by our own convenience. DICEY, CONFLICT OF LAWS 10. Since the business of the courts is merely to enforce the common law of which comity has thus become a recognized part, they may have no regard for their own kindly or unkindly feelings toward a foreign state. The Nereide, 9 Cranch (U. S.) 388, 422. Ít is only by legislation that foreign judgments may be deprived of the right they now enjoy under the principle of comity.

RESCISSION BY PAROL AGREEMENT. The same number of the Columbia Law Review contains an instructive article in text-book style by Professor Williston. Rescission by Parol Agreement, 4 Columbia L. Rev. 455. The discussion is concerned with the incidents and effect of a parol agreement to rescind, and is based on the proposition that such an agreement, in order to

effectuate its purpose must possess all the requisites of a binding contract. The subject is divided into three parts: in the first of these the primary proposition is laid down, with a statement of the exceptions which have been recognized by some courts when a unilateral contract is concerned; in the second the application of the doctrine to written contracts is examined, with especial reference to the effect of a subsequent contract covering the same subject matter; and the effect of a parol agreement to discharge an obligation under seal occupies the third part.

In explaining his primary rule, the writer makes the statement that an agreement to rescind an executory bilateral contract, whether made before or after breach, is valid, because the promise of one party to give up his rights is consideration for the like promise by the other. Such a proposition would seem to need qualification, for, in the case of an agreement entered into after a material breach, it is hard to perceive what consideration is given by the party in default. His right against the other, if it may be correctly termed a right, is unenforceable because of his own material breach; and of course the surrender of an unenforceable right is neither a detriment to the promisor nor a benefit to the promisee.

CANADIAN COPYRIGHT IN ITS CONSTITUTIONAL AND LEGAL ASPECTS. II. A. R. Clute. 24 Can. L. T. 347.

COMPARATIVE ROMAN LAW. Part I. James Williams. 30 L. Mag. & Rev. 70. CONGO STATE, THE; A REVIEW OF THE INTERNATIONAL POSITION. G. G. Philli more. A review of the controversy between the British government and that of the Congo State as to deficiencies in the method of administration in the Congo State. 29 L. Mag. & Rev. 385.

12 Am.

CONTROL OF PUBLIC UTILITIES, THE. William H. Bailey. Discussing the regulation of rates by a city council under authority delegated by the legislature. Law. 444.

CROWN AS CORPORATION, THE. W. Harrison Moore. 20 L. Quar. Rev. 351. DOCTRINE OF WAIVER, THE. Colin P. Campbell. Laying down a general rule, and contending that a waiver requires a consideration or facts equivalent to an estoppel to support it. 3 Mich. L. Rev. 9.

EQUITABLE DOCTRINE OF MARSHALLING THE ASSETS OF A DECEDENT'S ESTATE FOR THE PAYMENT OF DEBTS, THE. C. B. Garnett. II Va. L. Reg. 175. See NOTES, p. 221.

EXCLUSIVE POWER OF CONGRESS TO REGULATE INTERSTATE and FOREIGN COMMERCE, THE. David Walter Brown. 4 Columbia L. Rev. 490.

FEDERAL COMMON LAW. Hundson Cary. Contending that there is a federal common law as distinguished from the common law of the various states. IO Va. L. Reg. 475.

FIRE INSURANCE AS AN INDEMNITY CONTRACT. Roy Elias Ressler. 59 Cent. L. J. 364.

FREE CHURCH CASE, THE. R. M. Williamson. Supporting the recent decision of the House of Lords. 20 L. Quar. Rev. 415.

GAMBLING AND COGNATE VICES. John R. Dos Passos. Contending that such vices are merely mala prohibita, and advocating less harsh laws respecting them. 14 Yale L. J. 9. HAS A STATE COURT JURISDICTION to Issue AN INJUNCTION AGAINST A RECEIVER APPOINTED BY A FEDERAL COURT? W. A. Coutts. 59 Cent. L. J. 382. See supra. HISTORY OF THE ADOPTION OF SEC. I. OF ART. IV. OF THE U. S. CONSTITUTION, AND A CONSIDERATION OF the Effect oN JUDGMENTS OF THAT SECTION AND OF FEDERAL LEGISLATION. Geo. P. Costigan, Jr. 4 Columbia L. Rev. 470. See supra. INJURIES OCCASIONED BY THIRD PERSONS. G. S. Holmested. Pointing out some apparently contradictory propositions found in the authorities. 40 Can. L. J. 769. JUDGE-MADE LAW. A. H. F. Lefroy. Suggesting certain lines along which, according to the writer, judges make, rather than interpret law. 20 L. Quar. Rev. 399. LAND TRANSFER QUESTION, THE. W. Strachan. Suggesting a revised system of registration of title. 20 L. Quar. Rev. 427.

LIABILITY OF A MANUFACTURER FOR INJURIES TO THIRD Persons from IMPROPERLY CONSTRUCTED ARTICLES, THE. Glenda Burke Slaymaker. 59 Cent. L. J.

324.

LIABILITY OF TELEGRAPH COMPANIES FOR NEGLIGENCE IN TRANSMISSION OR DELIVERY OF MESSAGES, THE. III. and IV. Graham B. Smedley. 10 Va. L. Reg. 507.

LOANS FOR THE MAKING OR PAYMENT OF WAGERS. A. V. Dicey. A brief article to the effect that such loans do not come within the terms of the Gaming Act, 1892. 20 L. Quar. Rev. 436. MASSACHUSETTS PROPOSITION FOR AN EMPLOYERS' COMPENSATION ACT, THE. Epaphroditus Peck. Showing the present unsatisfactory state of the law, and approving the Massachusetts proposition. 14 Yale L. J. 18. MAY A MURDERER PROFIT BY HIS CRIME? L. P. M. Considering the question whether a murderer can succeed to the property of the deceased to which, except for the crime, he would be entitled. 1 N. C. J. of L. 532.

MORAL CONSIDERATION IN PENNSYLVANIA. I. Joseph P. McKeehan. 9 Dickinson Forum 1.

MORTGAGES OF MOVEABLES. Anon. Discussing briefly the state of the Indian law on the subject, and the need of legislation. 6 Bombay L. Rep. 193.

MUNICIPAL CORPORATIONS. Theodore D. Gottlieb. An historical sketch of the crigin and development of municipal corporations. 27 N. J. L. J. 325. NEUTRALITY OF GREAT BRITAIN, THE: THE FOREIGN ENLISTMENT ACT, 1870. N. W. Sibley. 29 L. Mag. & Rev. 454.

NOTICE, CONDITION, AND DECLARATION. THE DOMINION RAILWAY ACT, SEC. 246. A. Rives Hall. Arguing for an interpretation that will prevent railroads from contracting so as to relieve themselves from liability for negligence. 3 Can. L. Rev. 495.

PRACTICAL QUESTION IN THE LAW OF FRAUDULENT CONVEYANCES, A. Linton D. Landrum. Showing error of the construction of recording acts which holds unrecorded conveyances void only as to lien creditors; and finding for other creditors without notice relief in equity on grounds of fraud and estoppel. 59 Cent. L. J. 344.

PUTTING IN ONE'S OWN CASE ON CROSS-EXAMINATION. John H. Wigmore. An examination of the different rules upon the question with a strong condemnation of the so-called "federal rule" which confines the cross-examination to matters brought out in the direct examination. 14 Yale L. J. 26.

RECENT CASES AS TO WINDING UP ORDERS C. S. MacInnes. 40 Can. L. J. 726. RECONSTRUCTION OF COMPANIES. Frank Evans. Defining reconstruction and suggesting modes of accomplishing it. 20 L. Quar. Rev. 392.

RESCISSION BY PAROL AGREEMENT. Samuel Williston. 4 Columbia L. Rev. 455. See supra.

RIGHT TO RETAIN AN ADVOCATE, THE. Edward S. Cox-Sinclair. Discussing the right of an advocate to refuse upon some personal ground to appear on behalf of a litigant. 29 L. Mag. & Rev. 406.

RUSSIAN RAIDS ON NEUTRAL COMMERCE. Edwin Maxey. Showing that by the weight of authority food-stuffs are not contraband of war. 3 Mich. L. Rev. 1. SALES UNDER DEEDS of Trust. E. R. F. Wells. Discussing the rights of bona fide purchasers at unauthorized sales. 10 Va. L. Reg. 491.

SUBROGATION. K. S. Ramaswami Sastry. A discussion of the law of India as to subrogation by operation of law. 3 Madras Leg. Comp. 39.

SURRENDER. Herbert Thorndike Tiffany. A full treatment of the subject. 3 Mich. L. Rev. 18.

SWEDISH LAWBOOK OF 1734, THE: AN EARLY GERMANIC CODIFICATION. Wilhelm Chydenius. Discussing the provisions of the code on which is based the civil law of Sweden. 20 L. Quar. Rev. 377.

TOPICS OF MALABAR LAW,-TEMPLES. Anon. Classifying temples and discussing public interference with so-called "private" temples, when their property is not well administered. 14 Madras L. J. 195.

II. BOOK REVIEWS.

HANDBOOK OF THE LAW OF INSURANCE. By William Reynolds Vance. St. Paul, Minn.: West Publishing Co., 1904. pp. xiv, 683. 8vo.

This is a subject upon which recent books have not been very good. The present volume is better than its immediate predecessors; and as it seems likely to prove popular, a few suggestions are offered toward increasing the

usefulness of future editions.

On p. 6 it would have been well to state clearly that the Laws of Oleron and of Wisbuy throw no light on insurance, and to guard against a misunderstanding of the date of the Guidon de la Mer, - which was written, as the best authorities think, between 1556 and 1600, - and to mention Santerna de Assecurationibus (1552) and Straccha de Assecurationibus (1569).

On p. 7 it is said that "The first reported appearance of any question involving insurance in the common law of England occurred. (1546) in the case of Crane v. Bell." Doubtless this statement rests upon what is said by BRADLEY, J., in Insurance Co. v. Durham (11 Wall. [U. S.] 1, 34), and originally upon a statement in 4 Co. Inst. 139. It is now known, however, that Crane v. Bell was in no way connected with insurance. 6 Selden Soc. Pub. lxviii, 129, 229; 11 id. xlix.

On p. 8 it is said: "The first reported insurance case heard before a common law court is Dowdale's Case, which was decided in 1589," citing 6 Co. Rep. 47 b. Dowdale's Case (6 Co. Rep. 46 b) was decided in 1605, and had nothing to do with insurance; but at p. 47 b it cites Anonymous, (M. 30 & 31 Eliz.) (1588), which is also stated in 4 Co. Inst. 142, and which is certainly one of the earliest insurance cases mentioned in the ordinary reports.

It seems unnecessary to comment further upon the historical part of the volume. For practical purposes the history of insurance need not go beyond the fact, brought out clearly in this treatise, that the subject is of Continental origin, closely connected with maritime law, and only within the last three hundred years the source of much litigation in the ordinary courts; and hence the author did simply what most authors do when he took his history from scanty and inaccurate secondary sources.

It is only just that a book intended chiefly for use in practice should be tested almost exclusively by the accuracy and fullness of its statements of law. On p. 50 it is said that " From the fact that the contract of fire insurance is peculiarly personal, the result follows that rights under it, so long as it remains executory, cannot be assigned by one party without the consent of the other." This is inaccurate; but the author doubtless is thinking not of assignment but of a sort of novation—the substitution of the interest of a new person as the subject matter of the policy. The distinction is explained in Wilson v. Hill (3 Met. [Mass.] 66), Fogg v. Middlesex Mutual F. Ins. Co. (10 Cush. [Mass.] 337), and Cummings v. Cheshire County Mutual F. Ins. Co. (55 N. H. 457), besides being involved in some of the cases cited in the author's foot-notes.

On pp. 286-287, it is well said that "in order to constitute a stipulation a warranty, however, it must not only be clearly shown that the parties intended it as such, but it must also form a part of the contract itself. . . . Mere reference, alone, is not sufficient." It seems that such general statements can be of slight use unless illustrated by instances which have been held to create warranties, or the reverse; but the reader has been left to find such illustrations for himself by examining cases cited in the foot-notes.

...

The following appears on p. 289: "The untruth of an affirmative warranty will prevent the insured from ever acquiring any rights in the policy. . . . A promissory warranty, however, is in the nature of a subsequent condition of defeasance, the non-fulfillment of which renders the policy voidable." Yet the breach of an affirmative warranty also simply makes the policy voidable, for this breach can be waived, just as can the breach ab initio of an express condition. On p. 425, note, the author, discussing Castellain v. Preston (11 Q. B. D. 380), says that in Foley v. Manufacturers' and Builders' F. Ins. Co. (152 N. Y.